Portrait of Henry VIII in 1540, by Hans Holbein the Younger
THE BIDEN PARDONS—HUNTER AND THE CROOKED JUDGE WILL BE FORGOTTEN WHEN WE SEE HIM MASS PARDON DEPORTABLE ALIENS—BUCKLE UP FOR THE RIDE
A BRIEF BACKGROUND ON THE PARDON POWER—The English Monarchy bled into the Republic
It is widely understood that the Executive unilateralism represented by the pardon power has its roots in the history of that practice within the English monarchy. It is traced to the reign of the King of Wessex in the seventh century and was eventually codified by Parliament during the reign of Henry VIII (yes, that one) and was a privilege of rule exclusive to the King—a key feature of his power to curry favor and dispense mercy.
Fast forward to a Revolution, the Articles of Confederation, and then the Constitutional Convention. Of the Framers, Alexander Hamilton was its main proponent, and it follows that he was also a supporter of a robust executive, which he characterized as the “vigor of the executive authority,” commanding support but within the constraints of the separation of powers contemplated in the not yet ratified Constitution. Historians suggest that at the Convention there was not much debate upon the proposed practice, but proposals were rejected that included Senate input on the issue of any particular pardon, but this was cast aside. In Federalist 54, Hamilton envisioned this sole executive power as follows:
“Humanity and good policy conspire to dictate that the benign prerogative of pardoning should be as little as possible fettered or embarrassed….it may be inferred that a single man would be most ready to attend the force of those motives which might plead for a mitigation of the rigor of the law. The reflection that the fate of a fellow creature depended on his sole fiat would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance would beget equal circumspection….”
The result of the Convention was Article II, Section 2, Clause 1:
“The President shall be Commander in Chief of the Army and Navy of the United States and of the Militia of the several States when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the Executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
THE PARDON POWER IS VAST AND NOT SUBJECT TO LEGISLATIVE CONTROL—THERE IS THE RUB
In the wake of the Civil War, the pardon power was examined by the Supreme Court after its exercise in cases of treason. The Court in Ex Parte Garland in 1866 said:
“A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out the existence of guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it prevents…the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man and gives him a new credit and capacity”
BIDEN WILL TEST THE LIMITS OF THIS AUTHORITY TO PREVENT TRUMP FROM DELIVERING ON A CAMPAIGN PROMISE, TO FRUSTRATE THE WILL OF THOSE WHO VOTED TO REMOVE ILLEGAL ALIENS, AND TO SALVAGE SOME LEGACY AS A “COMPASSIONATE EXECUTIVE”
I am convinced that Biden is engaged in a bait and switch common to the grifter, and that is while many are pushing back on his mass commutations, clemency grants, as well as the pardon of his son, there is in the background a constitutional nuclear explosion in the works. Not widely reported, but it is examined here, is the inevitability that immigration advocates are urging Biden to engage in a mass civil pardon for breaches of the immigration laws regardless of whether they are criminal “offences.”. Fearing Trump’s promised crackdowns in the run-up to his election in 2016, such groups urged Obama to expand his authority under the pardon power to immunize those in the United States from deportation. Obama declined to exercise that authority, but some commentators have chalked this up to pure politics and not a rejection of it upon legal analysis. Let’s examine the core statute that governs deportation: 8 U.S.C. Section 1227 (a)2, which sets forth a series of criminal offenses, including misdemeanors of moral turpitude, aggravated felonies, high-speed flight from immigration officials, and others that permit removal. Hundreds of thousands already have adjudicated removals that Mayorgas and the Justice Department have not executed. Congress has allowed waiver of these deportation provisions for any offender who “has been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several states.” A full pardon of these serious offenses will prevent removal, and Biden has been briefed upon this, I am sure. An opinion of the Attorney General Office of Legal Counsel during the Clinton Administration provided to the Office of Pardon Counsel concluded that even though the deportation statute cited herein does not impose a penalty or define a crime but merely provides a vehicle for removal, nonetheless a pardon removes all disabilities and penalties associated with the underlying conviction, and therefore the pardoned alien cannot be removed, and the pardon has full effect. This would follow from a state offense that is pardoned by a Governor. It doesn’t stop there.
BOTH BIDEN AND BLUE STATE GOVERNORS ARE CERTAINLY WORKING TOWARD USING THIS PROVISION AND EXPANDING THE PARDON POWER TO PRECLUDE TRUMP FROM REMOVING ALIENS
Biden can pardon underlying federal “offences” and state executives can pardon state “offences” and set the stage for a blockade of removals pursuant to the federal immigration law cited herein. Biden, in my view, will go further. Liberal constitutional scholars urged Obama and will urge Biden to rely on the vast authority that is conferred upon the Executive and urge that the term “offence” used in the Pardon Clause is not limited to crimes. Deportation is seen as a “penalty” that CAN BE eliminated by a pardon, and even if this results from state convictions, the view of some is that the President can remove the penalty and sanction of deportation regardless of a state-level pardon by a Governor. Going even further, Biden may test the limits of the pardon power and engage in a mass reprieve of categories of civil immigration “penalties” using the broad authority granted directly by the Constitution in the Pardon clause. Biden doesn’t need precedent. He is desperate for a legacy, and I believe he will test these limits, and the Supreme Court will have a very difficult and historic task to determine what the law is. Open border advocates who decried Trump’s immigration-related executive actions will hypocritically about-face and urge Biden to expand the pardon power to create a sanctuary for those who would otherwise be easily removed by the incoming Trump Administration absent his action. Wait for it.
CONCLUSION
Distracted by the pardons Biden already has issued, we are missing what is probably occurring as I write this. Pardon Counsel, Merrick Garland, and Blue State Governors are marshaling questionable legal and historical precedent to justify a mass pardon of a variety of criminal and civil immigration “offences” to frustrate Trump’s mandate to remove illegal immigrants and enforce heretofore unenforced well-settled laws. I believe it will happen, and it should not stand. Selling off the remaining portions of the dreaded border wall at pennies on the dollar is a harbinger of what will occur before January 20th. Biden’s legacy will be one of corruption and disregard of the law for the benefit of salvaging a win for his open borders base. The Judiciary must intervene.
Mike Imprevento
December 16, 2024
